Wei v Du HC Auckland CIV-2011-404-2289

[2011] NZHC 1389

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-2289

UNDER  The Land Transfer Act 1952

IN THE MATTER OF     an application by Wen Wei for an order that a second caveat be allowed to be lodged pursuant to s 148(1) of the Land Transfer Act 1952

BETWEEN  WEN WEI Applicant

ANDYALI DU Respondent

Hearing:         30 August 2011

Appearances: Mr F Deliu for Applicant

Ms L Kearns for Respondent

Judgment:      30 August 2011

ORAL JUDGMENT OF ASSOCIATE JUDGE DOOGUE

Solicitors:

Amicus Lawyers, P O Box 68559, Newton, Auckland –  [email protected]

LJ Kearns, Barrister, P O Box 1857, Shortland Street, Auckland –  [email protected]

WEI V DU HC AK CIV-2011-404-2289 30 August 2011

[1]      This matter involves an application under s 148 of the Land Transfer Act

1952 for leave to lodge a second caveat.  The first caveat lapsed, before the caveat lapsed an application had been filed for an order that it not lapse. At a conference 23

May 2011 Whata J gave leave to the applicant to in effect add to the existing caveat not lapse proceedings and an amended application for an order under 148.  He made timetable orders which essentially involved the amended application being filed by

24  May 2011,  any affidavits  in  reply five  working  days  thereafter  and  a  reply affidavit if any, three working days thereafter.

[2]      A fixture was allocated for the hearing of this matter today on the date of 13

June 2011.

[3]      Today the applicant seeks to file additional evidence of a Mr Ram.  Mr Ram is apparently a solicitor and he has come to the Court today.  Mr Deliu tells me that Mr Ram would propose if permitted to give evidence, as to why the first caveat lapsed.  It seems that Mr Ram had control of the proceeding as the solicitor and he is likely to be the person whose decision lead to that event occurring and can therefore give evidence on the point.  Ms Kearns objected to any evidence being given at this late stage.  She said that the proceeding had been on foot for many months, as the brief chronology that I have already mentioned will indicate.  She pointed out that in the notice of opposition, which was filed in response to the amended application for leave under s 148 the respondent noted that the “applicant has failed to explain why the caveat lapsed”.

[4]      Mr Deliu said that there could be no issue of prejudice to the respondent if the additional evidence were to be given.  If necessary Mr Ram could be tendered for cross-examination today.   He was doubtful that the respondent could produce any evidence contravening the account to be given by Mr Ram.  He said that it is quite common for evidence to be allowed in notwithstanding its lateness and he referred me to the undoubted power to extend time contained in the rules.  He further said that enquiries should be one about the justice of the case and that the Court should not, in effect, be diverted by considerations of adherence to the rules to the point where justice would result to the applicant.

[5]      I do not intend to allow any further evidence.  The reasons why the caveat lapsed have been put in issue right since the time when the notice of opposition to amended application was filed.  While I agree with Mr Deliu that extensions of time are granted, there has to be balance between the rights of a party to obtain such an order in furtherance of the substantive justice of its case and the right of the other party to have the pleadings in order and the evidence completed.  It is not for me to speculate as to whether, if the opportunity to file additional evidence were made available to the respondent, whether such evidence would be forthcoming.

[6]      The matter is to proceed.   Any further delays to the hearing of the matter could  potentially prejudice  the  respondent  by the  filing  of  a  caveat  at  such  an

advanced stage in the life of the proceedings.  Costs on this application are reserved.

J.P. Doogue

Associate Judge